Gibson’s Bakery and its owners have filed their Response Brief (pdf.) opposing the appeal of Oberlin College and Dean Meredith Raimondo, who in turn have filed their Response Brief (pdf.) to the Gibsons’ cross-appeal.

Remember the procedural posture. Oberlin College’s appeal seeks to overturn the jury verdict. The Gibsons’ cross-appeal seeks to restore the full punitive damages award, asserting that statutory punitive damage caps were unconstitutional as applied to this case.

Several ‘amicus’ briefs also have been filed by groups supporting Oberlin College, including media groups allegedly colluding with the college in seeking to unseal private Facebook records of store clerk and non-party Allyn D. Gibson. The court docket does not reveal any amicus briefs filed supporting the Gibsons.

For full links to appellate briefs and background on the appellate proceedings, see these posts:

The problem in summarizing the appeal is that the college through everything including the proverbial kitchen sink into its Brief. As I mentioned at the time:

…. Oberlin College’s Brief … takes a kitchen sink approach. In 29 pages of text they throw in dozens of alleged trial court errors. It reads like a 50-page brief squeezed into 29 pages, and indeed, the college tried to get the usual 35 page limit increased to 50 pages but were turned down by the court. The readability of the Brief suffers for that.

* * *

The college again portrays this as a case of being held liable for student speech. But that’s not what happened, as I’ve written (and the Gibsons have argued in court papers) dozens of times. This is not a “free speech” case, it’s a case about alleged libelous statements in flyers spread by the Dean of Students, and the facilitation of spreading libelous statement in a student senate resolution.

“This appeal arises out of a protest by Oberlin students of a well-known bakery bordering the campus on Tappan Square. Believing that Allyn Gibson Jr.’s public altercation with a black student—stemming from the bakery’s chase-and-detain policy—was racially motivated, the students called for a boycott. The bakery and its owners sued Oberlin, claiming it should have censored its students’ speech.”

Gibson’s Bakery Brief Opposing Appeal

I wondered how the Gibsons would deal with the mess created by the college’s brief. The way they dealt with it was to construct their own brief around the “Assignments of Error” alleged by the college, rather than chasing down every stray allegation crammed into the college’s Brief.

Here are the Assignments of Error alleged by the college, followed by the response:

Assignment of Error No. 1. The trial court erred by denying motions for summary judgment (R. 194, 195, 281) and for judgment notwithstanding the verdict filed by Defendants-Appellants Oberlin College and Dean of Students Meredith Raimondo (collectively, Oberlin) (R. 485, 500).

Response to Assignment of Error No. 1: The trial court correctly denied Oberlin’s motions for summary judgment and JNOV.

Assignment of Error No. 2. The trial court erred and abused its discretion by denying Oberlin’s motion for a new trial or remittitur (R. 486, 501), and by failing to cap the damages as requested (R. 449, 454).

Response to Assignment of Error No. 2: The trial court did not abuse its discretion or err when it denied Oberlin’s motion for new trial or remittitur or in applying the damages cap statutes.

Assignment of Error No. 3. The trial court erred and abused its discretion by enhancing Plaintiffs-Appellees’ attorney fees award (R. 469, 474, 476, 477, 478, 480).

Response to Assignment of Error No 3: The trial court did not abuse its discretion in enhancing the Gibsons’ attorneys’ fees award.

The Gibsons then structure their Brief around these assignments of error, with images and excerpts from the trial record. It’s really hard to give a short summary of the Gibsons’ Brief for the same reason it was hard to summarize the college’s Brief. There are a lot of subparts each of which deals with a specific issue. Much of the argument has to do with the college failing to introduce at trial evidence it relies on for the appeal, or admissions and evidence not contested at trial. Basically, the Gibsons argue that several key arguments on appeal were not preserved for appeal.

One issue that has been of interest to me is the jury finding in the compensatory damages phase of no “actual malice,” but a finding of “actual malice” in the punitive phase. As I’ve described before, this was a byproduct of the bifurcated trial that the college requested. Here’s how the Gibsons respond in their Brief (emphasis in original):

e. The Gibsons presented substantial evidence showing that Oberlin acted with the requisite degree of fault.

Oberlin does not claim that there was insufficient evidence to prove negligence during the compensatory phase of trial. Thus, Oberlin concedes the Gibsons presented sufficient evidence to prove negligence. And Oberlin’s arguments on actual malice are meritless.

i. Because Oberlin demanded and received a bifurcated trial, the Gibsons were permitted to offer additional evidence and arguments on actual malice during the punitive phase of trial.

In a defamation action involving private persons about a matter of public concern, the plaintiff does not need to show evidence of libel actual malice to recover actual compensatory damages. Gilbert, 142 Ohio App.3d at 744. Libel actual malice need only be shown to recover presumed compensatory damages. Id. Libel actual malice must be shown in the punitive phase to recover punitive damages. Id. Oberlin wrongly argues that the jury’s decision on libel actual malice in the compensatory phase is binding in the punitive phase.

First, the jury’s decision in the compensatory phase has no preclusive effect on the punitive phase. Issue preclusion does not apply unless an “identical issue was actually litigated, directly determined, and essential to the judgment in the prior action.” Price v. Carter Lumber Co., 2012- Ohio-6109, 985 N.E.2d 236, ¶ 10 (9th Dist.) [citations omitted]. The decision on libel actual malice during the compensatory phase was not essential to the judgment because the Gibsons presented evidence of actual damages (so they did not need to prove presumed damages) and thus were only required to prove Oberlin acted with negligence and because the Gibsons were precluded in this phase from presenting their evidence of punitive damages. See, Gilbert, 142 Ohio App.3d at 744. [See, infra Sec. II(C)(2)]. See also, Root v. Stahl Scott Fetzer Co., 8th Dist. No. 104172, 2017-Ohio-8398, 88 N.E.3d 980, ¶¶ 72-73 (overturning a directed verdict on punitive damages during the compensatory phase because the plaintiff did not need to present evidence or arguments of actual malice until the punitive phase).

Second, Oberlin invited this procedure by filing their motion to bifurcate the compensatory and punitive phases of trial under R.C. 2315.21(B)(1). Once bifurcated, the Gibsons were statutorily precluded from presenting any evidence on punitive damages in the compensatory phase of trial. See R.C. 2315.21(B)(1)(a).

Once the jury awarded actual damages, the issue of libel actual malice was required to be submitted to the jury in the punitive phase where the Gibsons submitted substantial additional evidence on libel actual malice, including the following: witness testimony; exhibits of Oberlin ignoring messages from community members, employees, and alumni that Gibsons had no history of racial profiling or discrimination [See, Pl. Tr. Exs. 111, 161, 458-1, 485]; and Oberlin’s financial power. [See, Tr. Vol. XXIII, pp. 52-75]. [See also, bifurcation order excluding evidence of Oberlin’s financial position in compensatory phase, 4/22/19 J. Entry]. The jury found that Oberlin acted with libel actual malice and awarded the Gibsons punitive damages. Oberlin’s Motion to Bifurcate invited, and indeed required, submission of evidence and arguments on actual malice during the punitive phase of trial.

Third, Oberlin erroneously claims that Section 5, Article I, of the Ohio Constitution, the right to trial by jury, precludes thesubmission of libel actual malice in both phases of trial. To the contrary, it merely states “[t]he right of trial by jury shall be inviolate.” Oberlin did not cite (and the Gibsons are unaware of) even one Ohio authority stating that the Ohio right to trial by jury prevents the submission of overlapping issues in a bifurcated trial in both phases.

Lastly, the cases cited by Oberlin are not on point. Bradley v. Mansfield Rapid Transit, Inc., 154 Ohio St. 154 (1950) and Elio v. Akron Transp. Co., 147 Ohio St. 363, 370 (1947) are distinguishable on their facts, were decided decades before the enactment of R.C. 2315.21, and did not deal with the bifurcation of punitive damages.

The Gibsons then went on to show why the evidence presented was sufficient to show entitlement to punitive damages.

Oberlin College’s Cross-Appeal Brief

Here is an excerpt from the Introduction to Oberlin College’s Brief on the Cross-Appeal

Oberlin College and Meredith Raimondo’s (collectively, Oberlin) appellate brief explained why the record in this free-speech case arising out of a protest by its students of Gibson’s Bakery after a public altercation between a white employee and a black student
requires judgment for Oberlin, or at least a new trial or curtailed damages. Plaintiffs’ cross appeal, on the other hand, substitutesrhetoric for the record in an effort to uncap the punitive damages awards—conflating reductions made to awards so excessive that they violate a defendant’s constitutional rights with reductions mandated by legislative limits imposed to prevent excessive awards. In the process, Plaintiffs ignore the Ohio Supreme Court’s guidance in Arbino and fail to cite a single case in which any court held that the specific facts of the case satisfied the demanding burden for an “as-applied” constitutional challenge to a punitive damages cap….

If this Court were to reach the cross-appeal, it should reject Plaintiffs’ as-applied constitutional challenges and uphold R.C. 2315.21(D). Indeed, the protections afforded free speech under the Ohio Constitution and First Amendment, including the requirement that a court isolate and award only those damages caused by allegedly unprotected conduct (as opposed to protected protest chants), make this case unsuitable for any punitive damages award and particularly inapt for an as-applied challenge to Ohio’s punitive damages caps.

We will let you know when oral argument is scheduled.

[Featured Image: The late David Gibson, and Allyn W. Gibson at trial][Photo credit Bob Perkoski for Legal Insurrection Foundation]

 

 
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